In the photo, Emily can be seen hiding from the paparazzi by holding a bouquet of flowers over her face. The photographer – who sued Gigi Hadid – claimed that Emily did not have permission to use the photo.
In what is a landmark ruling in the world of social media and copyright law, Emily Ratajkowski has settled an ongoing copyright infringement lawsuit.
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Content that is shared on Instagram Stories differs from content of a permanent post on the network in that the story is automatically deleted after 24 hours unless the user chooses to save it as a permanent highlight on their page.
In the photo – which was live on her story for a day in 2019 – Emily can be seen hiding from the paparazzi by holding a large bouquet of flowers over her face as she left a florist in New York City. With her face completely hidden in the shot, Emily is basically unrecognizable, only showing her bare legs under an oversized jacket.
After Emily posted the photo to her story with the caption, “Forever Mood,” her photographer Robert O’Neill claimed that she did not ask permission to share it herself, nor did she license the photo.
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Matching a previous copyright case he filed against model Gigi Hadid that same year, Robert sued Emily for up to $150,000 in damages, also asking for any profits she might have made from his work.
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In the age of social media, it is not uncommon for copyright lawsuits to be filed against celebrities who have shared paparazzi photos of themselves on their Instagram networks. However, Emily’s new settlement ruling makes history the first to take into account the copyright implications of an Instagram story compared to those in a user’s main feed.
In recent years, paparazzi have sued public figures including Khloe Kardashian, Liam Hemsworth, Rebel Wilson and Gigi Hadid for sharing unauthorized photos on their Instagram pages. Cases of this nature are usually resolved quickly and privately; However, unlike others before her, Emily decided to fight her case in court.
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The model argued that Robert lacked a valid copyright for the image because his image did not exhibit “artistic quality”. She said her decision to post the photo, therefore, constitutes fair use.
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Copyright law states that in order for an image to be eligible for protection, it must have some form of “artistic merit”. For this reason, images that capture something – or someone – ‘as is’ without providing ‘reason to believe that any ‘creative spark’ was required to produce [it]“It may not be approved for defense.
In an attempt to use this to her advantage, Emily claimed in court documents filed in Southern District Court in New York that because Robert did not direct the photo but only took it as it appeared on the street, the photo should not qualify for copyright protection.
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“The protection afforded by copyright law is only available to the party who actually formed the image by putting people in their positions and arranging where people should be,” she said in court documents released in September 2020. “This is true even if the plaintiff has a registered copyright.”
However, US District Judge Annalisa Torres eventually found Robert’s photo to meet the “extremely low” standard of authenticity, and therefore, did not state that using Emily’s Instagram story constituted fair use.
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The judge also said that by writing the words “Forever Mood” on top of the image, Emily may have significantly altered the image and its meaning, which amounts to a diversionary use protecting her from a copyright claim.
“A reasonable observer could conclude that the Instagram photo only displays Ratajkowski’s clothing, location, and standing at the time – effectively the same purpose, as the photo,” Torres wrote in the federal court filings.
On the other hand, any reasonable observer would conclude that, given the flowers covering Ratajkowski’s face and body and the text ‘Forever Mood’, the Instagram photo instead conveyed that ‘Ratajkowski’s forever mood’ was her attempt to hide from the eyes of the paparazzi. transitive – a comment on the photo.
Touching new ground in copyright law, Torres went on to say that although Emily’s Instagram story had only been on her account for 24 hours in total, the length of availability of the offending image still mattered to the claim.
“If an Instagram photo only appeared for twenty-four hours, it is less likely that someone would take the photo from the Instagram account than authorize it from the plaintiff, compared to the same risk if the Instagram photo was permanently pinned to an Instagram account,” the judge wrote.
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Interestingly, Emily wrote about the lawsuit in a September 2020 article titled “Buy Myself Again,” in which she explores the legal and ethical complexities of modeling, consent, and whether she truly holds her own image as a public figure.
Recalling her discovery of the suit in 2019, she wrote that she initially shared the photo because she liked what had been said about her relationship with the paparazzi.
She wrote of Robert’s photo: “I loved the shot the paparazzi got but not because it was a good photo of me.” “I can’t quite recognize him; only my bare legs and the big old tweed jacket I was wearing were visible. Wild-looking flowers replace my head.”
“I posted the photo on Instagram a few hours later, and I put text over it in bold white capital letters that read the forever mood,” she continued. “I loved what was said about my relationship with the paparazzi, and now I am being sued for it. I have become more familiar with seeing myself through the lenses of paparazzi than looking at myself in the mirror.”
Now, after Emily has fought Robert’s claim by saying that there was no valid copyright for the image, the lawsuit has been officially settled.
According to court files, Judge Torres closed the case on Wednesday after reaching a settlement. The terms of the settlement deal were not disclosed.
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Regardless of the end result, the case lays an interesting foundation for future copyright ramifications that might arise from Instagram Stories and celebrities’ use of paparazzi images in them.
BuzzFeed News has reached out to a representative for Emily Ratajkowski for comment.
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